Crim Law Flashcards
(133 cards)
1
Q
Jurisdiction
[overview]
A
A person may be tried in any state that has a connection to the crime, including the state where the criminal act (or omission) occurred and/or the state where the harmful result occurred
2
Q
Jurisdiction Example: A, while stealing B’s car in Bristol, Virginia, stabs B and forces B into the trunk. A then drives B’s car toward the Tennessee state line. B dies in Bristol, Tennessee. A is tried for murder in Virginia and Tennessee. A moves to dismiss both cases for lack of jurisdiction. Should either case be dismissed?
[overview]
A
No, because a state has jurisdiction when the offense is committed wholly or partly within the state.
3
Q
Merger Doctrine
[overview]
A
Under the doctrine of merger, an accused may be convicted for only one offense despite the fact that he committed multiple offenses
4
Q
Merger of Inchoate Crimes
[overview]
A
Solicitation merges into conspiracy, attempt, and the completed crime
Attempt merges into the completed crime
But conspiracy does NOT merge into attempt or the completed crime (e.g., a person may be convicted of murder and conspiracy to commit murder)
5
Q
Merger of Lesser Included Offenses
[overview]
A
“Lesser included offenses” merge into the greater offense; a lesser included offense is one that consists entirely of some, but not all, elements of the greater offense.
6
Q
Merger of Robbery
[overview]
A
Robbery: larceny and assault (or battery) merge into robbery (or attempted robbery) because all of the elements of both larceny and assault (or battery) must be proved for robbery (or attempted robbery)
7
Q
Merger of Felony Murder
[overview]
A
Felony-Murder: the underlying felony (e.g., robbery) merges into felony-murder, assuming there is only one victim
8
Q
Merger of Reckless Driving
[overview]
A
But reckless driving (or DUI) does not merge into involuntary manslaughter (even where the reckless driving caused the death) because each crime requires proof of at least one distinct element—a person may be convicted of reckless driving without causing a death and may be convicted of involuntary manslaughter without using a vehicle.
9
Q
Elements of a Crime
[elements of a crime]
A
- Physical Act (Actus Reus) - Definition: A willed muscular movement of the defendant.
- Mental State (Mens Rea)
- Concurrence of Physical Act and Mental State
- Causation
10
Q
Things not considered physical acts for criminal liability
[elements of a crime]
A
- Sleepwalking
- Reflexes
- Convulsions
- Hypnosis
- Being physically forced by another (e.g., A pushes B into C. A is guilty of battery, but not B)
11
Q
Omission as a physical act
[elements of a crime]
A
As a general rule, a person’s failure to act will not constitute a crime.
12
Q
4 common law mental states
[elements of a crime]
A
- Specific Intent Crimes
- Malice Crimes
- General Intent Crimes
- Strict Liability Crimes
13
Q
Specific intent definition
[elements of a crime]
A
Crimes for which the prosecution must prove the accused’s intent as a separate element
14
Q
List of specific intent crimes
[elements of a crime]
A
- All theft and lying crimes (larceny, robbery, burglary, forgery, false pretenses, embezzlement, bribery, and perjury)
- All inchoate crimes (solicitation, conspiracy, attempt)
- First degree murder (in states with statutes differentiating degrees of murder)
- Assault (but only the attempted battery type)
- Accomplice liability
15
Q
2 defenses that only apply to specific intent crimes
[elements of a crime]
A
voluntary intoxication and unreasonable mistake of fact
16
Q
Definition of malice crimes
[elements of a crime]
A
Crimes in which the accused acted with (at least) extreme recklessness.
17
Q
List of malice crimes
[elements of a crime]
A
- Common law murder (and second degree murder in states with statutes differentiating degrees of murder)
- Arson
- Malicious mischief
- House burning
18
Q
Definition of general intent crimes
[elements of a crime]
A
Crimes in which the accused acted with at least ordinary recklessness or gross negligence
19
Q
List of general intent crimes
[elements of a crime]
A
All crimes that do not require specific intent or malice, including battery, rape, kidnapping, false imprisonment, mayhem, criminal trespass, involuntary manslaughter, voluntary manslaughter, and assault (of the “threat” kind).
20
Q
Mental state to go with if the requirement is unclear
[elements of a crime]
A
If a mental state requirement of a crime is unclear, the default is general intent.
21
Q
Definition of strict liability crimes
[elements of a crime]
A
A crime in which the accused’s mental state is irrelevant.
22
Q
List of strict liability crimes
[elements of a crime]
A
- Statutory rape
- Selling or providing liquor to minors
- Bigamy
- DWI/DUI (and most other traffic violations that are criminal in nature)
- Reckless driving is a general intent crime - Many regulatory, environmental, and public welfare offenses (e.g., selling impure or adulterated food or alcohol)
23
Q
Defenses to strict liability crimes
[elements of a crime]
A
There are very few defenses to strict liability crimes (i.e., mistake of fact is not a defense, but insanity may be a defense).
24
Q
Transferred intent
[elements of a crime]
A
Criminal law recognizes the doctrine of transferred intent; it is most often applied in homicide, assault, and battery cases. Transferred intent does not apply to attempt.
25
Mental States under the Model Penal Code
[elements of a crime]
1. Purposely: conscious intent to either engage in certain conduct or cause a certain result (e.g., A shot B because A wanted B to die)
2. Knowing (or Willfully): aware that conduct will or likely will cause a certain result; conduct overwhelmingly likely to produce a result (A reasonable or unreasonable mistake of fact is a defense to such crimes)
3. Recklessly: conscious disregard of a substantial or unjustifiable risk, and this constitutes a gross deviation from standard of care of a reasonable person; must know that injury might result; this is the default mental state under the Model Penal Code
4. Negligence: failure to be aware of a substantial and unjustifiable risk and such failure is a substantial deviation from the standard of care of a reasonable person (a higher standard than tort law—probably closer to tort law’s gross negligence)
26
Requirement of concurrence between physical act and mental state
[elements of a crime]
The defendant must have the necessary mental state at the time he or she committed the act constituting the crime.
27
Causation
[elements of a crime]
To be found guilty, the defendant’s criminal act must be both the actual (“but for”) cause and the proximate cause. Technically, causation is an element of all crimes, but causation issues usually arise in “result” crimes (e.g., homicide).
Defendant is the actual cause of murder or manslaughter if the defendant’s criminal act “shortens” the victim’s life.
In rare cases, the defendant may be the actual cause of murder or manslaughter if defendant’s criminal act “lengthens” the victim’s life
28
3 insanity tests
[defenses negating capacity]
1. M’Naghten Rule (majority and federal courts)
2. Irresistible Impulse Test
3. Model Penal Code Test
29
M’Naghten Rule
[defenses negating capacity]
M’Naghten Rule (majority and federal courts): at the time of the crime, the accused suffered from a mental disease or defect and the accused did not know what he was doing was legally wrong
A defendant is not entitled to acquittal merely because he believes his acts are morally right
The insanity defense may not be based on an abnormality manifested only by repeated criminal or otherwise antisocial conduct; thus, psychopaths and sociopaths are not eligible for the insanity defenses
30
Irresistible Impulse Test
[defenses negating capacity]
Irresistible Impulse Test: at the time of the crime, the accused suffered from a mental disease or defect and the accused may have known that his act was wrong, but could not resist it
31
MPC Insanity Test
[defenses negating capacity]
Model Penal Code Test: a defendant is not guilty if he can satisfy either the M’Naghten or Irresistible Impulse test
32
Burden of proof for insanity defenses
[defenses negating capacity]
The state may require the accused to prove insanity by either a preponderance of the evidence or clear and convincing evidence as an affirmative defense
33
Incompetency to stand trial
[defenses negating capacity]
Exists if the accused is unable to understand the nature of proceedings or to assist his counsel
Burden of Proof: the state may require the accused to prove incompetency by a preponderance, but not by clear and convincing evidence, as this would violate due process
34
Voluntary Intoxication
[defenses negating capacity]
Intoxication by drugs or alcohol that is self-induced and taken without duress
A defense to specific intent crimes only
- BUT: Liquid Courage: Voluntary intoxication is not a defense for any crime if the accused used alcohol or drugs to “build up his nerve or courage” to commit the crime
Voluntary intoxication is not a defense to general intent crimes, malice crimes, or strict liability crimes
35
Involuntary Intoxication
[defenses negating capacity]
Taking an intoxicating substance (a) without knowledge of its properties, (b) under duress imposed by another, or (c) pursuant to medical advice and without knowledge of its intoxicating effects
Involuntary intoxication is treated the same as insanity and thus a defense to nearly all crimes
36
Infancy
[defenses negating capacity]
At common law:
1. Under age 7, no criminal liability
2. Age 7-14, rebuttable presumption of no criminal liability
3. Over age 14, treated as adults
37
Nature of defenses/burden for D
[justifications, excuses, and defenses]
These are generally considered affirmative defenses for which the defendant has the burden of production and the burden of persuasion (usually by a preponderance of the evidence)
The victim’s “contributory negligence” or “forgiveness” is not defense to any crime
38
Self-Defense - Nondeadly Force
[justifications, excuses, and defenses]
Nondeadly Force: a person may use non-deadly force where reasonably necessary to protect one’s self from imminent use of unlawful force
For purposes of self-defense and defense of others, the defendant may not act out of a sense of preemption or retaliation.
There is no duty to retreat before using non-deadly force in self-defense.
39
Self-Defense - Deadly Force
[justifications, excuses, and defenses]
Deadly Force: a person may use deadly force when she:
1. Is confronted with imminent death or serious bodily harm
2. Was not the aggressor, and
3. Is confronted with unlawful force
4. In the majority of jurisdictions, there is no duty to retreat before using deadly force in self-defense. In a minority of jurisdictions (and under the Model Penal Code), there is a duty to retreat before using deadly force in self-defense, unless the person using self-defense is in her own home.
40
Effect of using too much force in self-defense
[justifications, excuses, and defenses]
If too much force is used, self-defense is not available and thus the person claiming the defense would be guilty of a crime (e.g., battery).
41
Defense of others
[justifications, excuses, and defenses]
Defense of others applies if the accused reasonably believed that another person was being attacked (and thus that person could have used self-defense)
Under the majority view, the defense is not negated by the fact that the other person was not entitled to use self-defense, as long as accused reasonably believed so.
42
Defense of property - deadly force
[justifications, excuses, and defenses]
Deadly Force. A person may not use deadly force (e.g., spring guns) solely to defend property.
43
Defense of property - non-deadly force
[justifications, excuses, and defenses]
Reasonable non-deadly force may be used to:
1. Regain possession of property if that property was wrongfully taken from a person’s immediate possession and the person demands return of the property before using such force (or such a demand is futile) or
2. Defend property in one’s possession if the need to use force reasonably appears imminent
44
Defense of property - Dwelling Rule
[justifications, excuses, and defenses]
A person may defend his or her home with deadly force to protect those inside from personal attack (by violent or riotous entry) or to prevent someone from entering for the purpose of committing a felony.
45
Defense of Necessity
[justifications, excuses, and defenses]
A person may use the defense of necessity if she reasonably believes that her conduct was necessary to avoid some greater harm and she has no other lawful alternative
Necessity generally must result from pressure from physical forces of nature or health-based emergencies
Necessity is not a defense to homicide and it may not be used if the defendant was at fault in creating the necessity (e.g. taking a sail boat out despite hurricane warnings)
46
Defense of Duress
[justifications, excuses, and defenses]
If a person (or a member of her family) is subject to physical duress (i.e., serious violence or threats of immediate serious violence), this excuses the crime (e.g., A tells B that he will kill B’s son unless B robs the local bank. B robs the bank. B is not guilty because of duress).
Duress may not be used as a defense for intentional homicide.
Duress may be used as a defense for felony-murder if it would serve as a defense to the underlying felony (e.g., robbery).
Duress may not be used as a defense where the defendant recklessly placed himself in a situation in which it was probable that he would be subject to duress (e.g., by joining a dangerous gang that is rumored to kill any member that defects).
47
Mistake or Ignorance of Fact
[justifications, excuses, and defenses]
Reasonable Mistake of Fact: a reasonable mistake that negates an element of the crime is a defense to all crimes, except strict liability crimes
Unreasonable Mistake of Fact: an unreasonable mistake that negates an element of the crime is a defense only to specific intent crimes
48
Mistake or Ignorance of Law
[justifications, excuses, and defenses]
Mistake or ignorance of law is rarely a defense; there are a few minor exceptions:
1. The law was not adequately published
2. The accused was relying on a judicial opinion that was later overturned
3. Knowledge of the law is an element of the offense (which is quite rare)
49
Defense of Consent
[justifications, excuses, and defenses]
Consent is generally not a defense to a crime, unless it negates an element of the offense and then only as to
1. Rape and kidnapping (in certain situations)
2. Minor assaults and batteries (e.g., a legal boxing match) but not serious batteries or homicide
- Some statutory crimes require the prosecution to prove non-consent
50
Entrapment
[justifications, excuses, and defenses]
The defendant must show that the intent to commit the crime originated with law enforcement and defendant was not predisposed to commit the crime prior to government contact
51
Definition of Inchoate Offenses
[inchoate offenses]
Acts committed prior to and in preparation of a more serious offense. Inchoate offenses are complete offenses, even though the act to be done may not yet have been completed. All inchoate offenses are specific intent crimes.
52
List of Inchoate Offenses
[inchoate offenses]
1. Attempt
2. Solicitation
3. Conspiracy
53
Attempt definition
[inchoate offenses]
An act or acts done with the intention of committing a crime, but which fall short of completing the crime.
54
Elements of attempt
[inchoate offenses]
1. Specific intent to commit a crime (even if the completed crime is not a specific intent crime)
2. Under the Model Penal Code (and majority) view, the accused must take a substantial step toward completing the crime (i.e., the accused must go beyond the stage of mere preparation to some firm, clear, and undeniable action)
3. Under the common law, the accused must come dangerously close to successful completion of the crime (unlike the Model Penal Code, the common law requires that the defendant come very close to completing the crime)
55
Merger of attempt
[inchoate offenses]
Attempt merges with the completed offense; thus, a defendant may not be convicted of both attempt and the completed crime assuming there is only one victim
56
Defenses to attempt
[inchoate offenses]
1. Factual Impossibility of Success: Ask the following question: If the facts are as the accused believed them to be, would the accused be guilty of a crime? If so, factual impossibility is not a defense
2. Legal Impossibility: This is a defense, but is quite rare. It applies only in those situations where the completed act is not illegal (despite the fact that the accused thought it was illegal)
3. Factual impossibility and legal impossibility often look alike (e.g., a defendant charged with murder for shooting a person he thought was alive but was already dead). If unclear, most courts (and the Model Penal Code) assume the defendant is asserting factual impossibility and thus is guilty of the crime
4. Abandonment: This is not a defense at common law (but it is a defense under the Model Penal Code if the abandonment/renunciation is complete and truly voluntary)
57
Solicitation definition
[inchoate offenses]
Urging, inciting, or asking another person to commit a crime (e.g., hiring a hit man) with the specific intent that the crime be committed. The offense of solicitation is complete upon the asking or inciting.
58
Things that are NOT defenses to solicitation
[inchoate offenses]
It is not a defense that:
1. The other person was incapable of committing the crime (e.g., was a police officer)
2. The person asked to commit the crime is acquitted of the crime
3. The person asked to commit the crime fails to complete it
4. That the solicitor renounces or withdraws the solicitation (even if before the solicited crime is committed)
- The Model Penal Code recognizes renunciation as a defense if the soliciting party prevents commission of the crime
59
Effect on the solicitor of the commission of the crime
[inchoate offenses]
If the crime is committed, the solicitor is guilty of the crime as an accomplice
60
Solicitation merger
[inchoate offenses]
Merger: Solicitation merges with conspiracy, attempt, and the completed offense
61
Conspiracy definition
[inchoate offenses]
An agreement between two or more people to commit a crime
62
Elements of conspiracy
[inchoate offenses]
1. Agreement (express or implied) between two or more people
2. Specific intent to enter into an agreement (i.e., words or actions indicating that the defendant intended to join the conspiracy)
3. Specific intent to achieve the objective (i.e., successful completion of at least one crime) of the agreement (this requires two guilty minds—i.e., the bilateral approach to conspiracy—the second person cannot be a police officer or someone working with the police)
- The Model Penal Code requires only one guilty mind for conspiracy (the unilateral approach to conspiracy)
4. An overt act in furtherance of the conspiracy (any act by any conspirator—even one of mere preparation—is sufficient)
63
Examples of overt acts for conspiracy
[inchoate offenses]
Examples of overt acts: stealing a getaway car; buying a gun; conducting a dry-run of the crime; arranging an additional meeting of the conspirators; checking a weather report for the day of the crime
64
When the conspiracy ends
[inchoate offenses]
The conspiracy ends when the underlying offense is completed, unless the parties also explicitly planned to conceal the crime; acts of concealment, by themselves, are not sufficient to continue the conspiracy
65
Conspiracy and merger
[inchoate offenses]
Merger: conspiracy does NOT merge with attempt or the completed crime; thus, a person may be convicted of both conspiracy to commit murder and murder (or attempted murder)
66
Scope of criminal liability for conspiracy
[inchoate offenses]
Criminal liability: all members of the conspiracy are liable for all foreseeable crimes committed in furtherance of the objectives of the conspiracy (but are not liable for crimes committed before they joined the conspiracy)
67
Conspiracy and impossibility
[inchoate offenses]
Impossibility of the crime is no defense
68
Withdrawal as a defense for conspiracy
[inchoate offenses]
At common law, withdrawal from the conspiracy is never a defense to the conspiracy itself (the crime is complete as soon as an agreement is made and an overt act is committed). A person may, however, withdraw from future crimes committed in furtherance of the conspiracy if:
1. A person affirmatively notifies all members of conspiracy with such time that everyone has an opportunity to abandon his or her plans and
2. If the withdrawing conspirator has provided material assistance, he or she must neutralize the assistance or notify the police
3. The Model Penal Code recognizes complete and voluntary withdrawal as a defense to the conspiracy itself if the defendant thwarts the success of the conspiracy (e.g., informs the police).
69
Limitation of conspiracy with protected classes
[inchoate offenses]
If a statute is designed to protect a particular class (e.g., statutory rape laws are designed to protect underage victims and child labor laws are designed to protect children), the protected person may not be convicted of solicitation, conspiracy, or accomplice liability for the completed offense even if the protected person solicits or aids in the crime and/or agrees to commit the crime
70
Effect of other members of a conspiracy being acquitted
[inchoate offenses]
If all other members of the conspiracy are acquitted, the accused may not be convicted because he had no one with whom to conspire
71
Wharton Rule
[inchoate offenses]
Wharton Rule: If the crime, by its very nature, requires two persons (e.g., adultery, bribery, incest, dueling, and bigamy), there is no additional liability for conspiracy, unless a third person agrees to participate.
Likewise, a simple agreement to buy drugs is generally insufficient to establish a conspiracy between the seller and buyer
72
Three parties to a crime under accomplice liability
[accomplice liability]
Under modern law, there are three parties to a crime:
1. Principals: persons that engaged in the criminal act or omission with the required mental state
2. Accomplices: persons that aided, counseled, or encouraged the principal with the intent that crime be committed; such aid, etc. may occur either before or during the crime
3. Accessories After the Fact: persons that assist felons in fleeing justice (felony must be complete at time aid is given) with the purpose of preventing a conviction; accessory after the fact is a separate crime with its own punishment
73
Mental state required for accomplice liability
[accomplice liability]
Mental State: accomplice liability requires that the person giving aid or encouragement to the principal specifically intends that the crime be successfully completed (e.g., an accomplice to larceny must specifically intend that the owner be permanently deprived of the property)
If the accomplice has some purpose other than successful completion of the crime (e.g., to set a trap for the principal in which he is arrested), the accomplice is not guilty
Mere knowledge that a crime may result from assistance is generally not sufficient
A person used as an ignorant “dupe” is not an accomplice (and the person using the dupe is a principal)
74
Scope of liability for accomplices
[accomplice liability]
Accomplices are responsible for crimes they aid or encourage and for any other foreseeable (or probable) crimes committed during the course of the contemplated crime; accomplices are often guilty of conspiracy as well
75
Withdrawal of aid with accomplice liability
[accomplice liability]
If an accomplice withdraws his or her aid or assistance before the crime is committed, this may be an effective defense, with the following caveats:
1. If the accomplice merely encouraged the commission of the crime, the accomplice’s repudiation of that encouragement is enough
2. If the accomplice provided some material assistance (e.g., a getaway car), the accomplice must at least attempt to neutralize the assistance by retrieving the material
3. If the above are impossible, the accomplice must notify the authorities or try to stop the crime before the chain of events leading to commission of crime occurs or becomes unstoppable
76
Close relatives as accessories
[accomplice liability]
Close relatives (e.g., spouse) of the felon are often exempt from prosecution as accessories after the fact
77
Battery definition
[offenses against the person]
Definition: unlawful application of force to the person of another resulting in either bodily injury or an offensive touching
- Common law battery is a misdemeanor.
---
It is sufficient that defendant put into motion actions causing harm. Example: A pushes B into C. A is guilty of battery.
78
Intent required for battery
[offenses against the person]
Battery is a general intent crime; it is enough that the defendant caused the application of force with ordinary recklessness (i.e., the defendant is substantially certain harmful or offensive contact will occur).
79
Battery and consent
[offenses against the person]
A victim may consent (assuming he or she has capacity to) a simple battery, but not to serious batteries or homicide.
80
Assault
[offenses against the person]
There are two types of assault at common law: (a) an attempt to commit a battery (this is a specific intent crime) and (b) the intentional creation (by more than mere words) of a reasonable apprehension in the victim’s mind of imminent bodily harm (this is a general intent crime).
- Common law assault is a misdemeanor
- Under modern law, the term “assault” is often used for both assaults and batteries
81
Murder definition
[offenses against the person]
Definition (common law): The unlawful killing of a human being with malice aforethought; there are four distinct ways to prove malice aforethought:
1. Intent to kill (includes “mercy” killings). In some states, if the defendant intentionally uses a deadly weapon on the victim, the jury is permitted to infer “intent to kill”
2. Intent to inflict great bodily injury that could easily lead to death (e.g., shoot in the shoulder, strike in head with baseball bat or cement block)
3. Reckless indifference or extreme recklessness (e.g., shooting in a crowded room or shooting in the direction of people)
4. Intent to commit a common law felony (felony-murder)
82
Timing for common law murder
[offenses against the person]
Defendant’s act must cause the victim’s death within one year and a day at common law
The hastening of one’s death may be murder (e.g., A intentionally shoots and kills B, who, because of terminal illness, had only 10 minutes to live. A is guilty of murder).
83
Liability for indirect murder
[offenses against the person]
Defendant is liable for the natural and probable consequences of his acts, even if not anticipated; defendant is liable even if not aware of victim’s preexisting condition (A shoots B in the leg. Although an average person would survive such wound, B has hemophilia and dies. A is guilty of murder).
84
Voluntary Manslaughter definition
[offenses against the person]
ii. Voluntary Manslaughter
Definition: Intentional or reckless killing as a result of adequate provocation (i.e., common law murder plus provocation); adequate provocation exists when there is:
1. Sudden and intense passion for an average person (objective)
2. Provocation in fact (subjective)
3. No “cooling off” time for an average person (objective)
4. No “cooling off” time for the defendant (subjective)
85
Effect of meeting the elements of voluntary manslaughter
[offenses against the person]
If the defendant killed another intentionally or recklessly and any of these four elements is absent, the defendant is guilty of murder. If all four of the elements of voluntary manslaughter are present, the defendant is not innocent, but rather is guilty of voluntary manslaughter (as opposed to murder).
86
3 fact patterns which voluntary manslaughter is normally limited to on the UBE
[offenses against the person]
For UBE purposes, voluntary manslaughter is probably limited to the following fact patterns:
(1) defendant finds his or her spouse in bed with another person
(2) defendant is involved in mutual combat, or
(3) defendant responds to an assault/battery with too much force (i.e., more force than necessary for self-defense)
87
2 types of involuntary manslaughter
[offenses against the person]
1. Ordinary Recklessness (majority): a person may be convicted of involuntary manslaughter if he acts recklessly by consciously disregarding a high risk of death or serious bodily injury
- Criminal (Gross) Negligence (minority): a person may be convicted of involuntary manslaughter if a reasonable person would have been aware that her conduct created an unreasonable and high risk of death or serious bodily injury
2. Unlawful Act Manslaughter (i.e., misdemeanor-manslaughter): a person may be convicted of involuntary manslaughter for a killing that occurs during the course of a serious misdemeanor or a felony not included on the list of felonies for felony murder
- A majority of states do not have unlawful-act manslaughter statutes
88
Degrees of murder
[offenses against the person]
iv. Degrees of Murder
1. Under modern law in most states, all murders are presumed to be second degree murder, unless the prosecution proves one of the following (in which case the accused is guilty of first degree murder):
a. Deliberate and premeditated killing: brief reflection on idea of killing (e.g., lying in wait or ambush)
b. First degree felony-murder: statutorily defined as such (generally burglary, arson, robbery, rape, kidnapping, felonious escape)
c. Killings performed in certain ways, as enumerated by statute (e.g., by bomb, poison, torture)
2. The common law did not divide murder into degrees. The Model Penal Code also does not divide murder into degrees
89
Felony murder definition
[offenses against the person]
Definition: a killing committed during the course of a common law felony (i.e., burglary, arson, robbery, rape, mayhem, or kidnapping) or during an attempt to commit a common law felony, even if the killing is accidental. The criminal intent is implied from intent to commit the underlying felony.
90
Felony murder independence requirement
[offenses against the person]
The underlying felony must be independent of the killing (i.e., there is no felony-murder for battery, assault, child abuse, or manslaughter because these crimes are often precursors to murder).
91
Felony murder foreseeability requirement
[offenses against the person]
The death must be the foreseeable result of the commission of a felony. Moreover, a person may receive the death penalty for felony-murder only if he played a substantial role in the felony and the killing (e.g., the getaway driver may be convicted of felony-murder, but probably cannot be sentenced to death)
92
Timing requirement within felony murder
[offenses against the person]
The death must have been caused during the commission or attempted commission of the felony or during the immediate flight from the felony (i.e., before the felon reaches a place of safety, such as his home or a hide-out).
93
Liability of deaths of co-felons and/or deaths caused by bystanders in felony murder
[offenses against the person]
Generally the defendant is not liable for the death of a co-felon caused by resistance from a victim or police (because the killing by the police or victim is justifiable).
However, the defendant is probably liable if he kills (accidentally or intentionally) a co-felon during the commission of the felony.
In a majority of jurisdictions (agency theory), the defendant is not liable if the police or victim accidentally kill each other or a bystander. In a minority of jurisdictions, (proximate cause theory), the defendant is probably liable for such deaths
94
Effect of a defense to the underlying felony in felony murder cases
[offenses against the person]
If the defendant has a defense to the underlying felony, then she can use the same defense for felony-murder
95
Felony murder and merger
[offenses against the person]
Under the doctrine of merger, the defendant may not be convicted of both felony-murder and the underlying felony (e.g., robbery), unless there are multiple victims
96
MPC and felony murder
[offenses against the person]
The Model Penal Code does not recognize felony-murder, but it does establish a “rebuttable presumption” of recklessness for killings that occur during the commission of a robbery, rape, arson, burglary, kidnapping, or felonious escape.
97
Kidnapping definition
[offenses against the person]
Definition: The confinement of a person involving either some movement of the victim against the victim’s will or restraint of the victim in a secret place. A “secret” location is one where the victim is unlikely to be found or a location outside of public view. If the victim is competent to consent and does so, this may negate an element of the crime. Minors and mental incompetents may not consent.
Traditional View: Any movement of victim against her will is sufficient
Majority & Model Penal Code View: Substantial movement is required; minor movement (e.g., room to room) incidental to another crime is insufficient
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False imprisonment definition
[offenses against the person]
Definition: the unlawful confinement of a person without his or her consent
Nearly identical to the tort of the same name
It is a general intent crime
False imprisonment is a lesser included offense of kidnapping.
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Rape definition
[sex offenses]
Definition (common law): Unlawful carnal knowledge of a woman by a man who is not her husband without her effective consent (“not her husband” requirement has been dropped by most states by statute).
Modern statutes have renamed “rape” as “sexual assault” or “sexual battery” and have made the crime gender neutral.
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Rape and consent
[sex offenses]
At common law, “non-consent” was an element of the crime for the prosecutor to prove. Under some modern statutes, consent is an affirmative defense for the defendant to prove. For that defense to prevail, the defendant must have had both an honest and reasonable belief that the victim consented
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Consent is not valid when obtained:
1. By force
2. By threats of force
3. From someone without capacity (e.g., underage, drunk, asleep, insane)
4. By fraud as to the nature of the “act” (e.g., a doctor fraudulently telling his patient that the penetration was caused by a medical instrument); other types of fraud do not invalidate consent (e.g., a man fraudulently telling a woman that he will marry her if she agrees to sex)
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Statutory rape
[sex offenses]
Definition (common law): sex acts with a person under the age of consent; this is a strict liability crime, so mistake as to the victim’s age is no defense
Because statutory rape laws are designed to protect minors, the minor cannot be found guilty of conspiracy to commit statutory rape, solicitation of statutory rape, or as an accomplice to statutory rape.
Although statutory rape is a strict liability crime, “attempted statutory rape” is a specific intent crime.
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Bigamy
[sex offenses]
Definition (common law): Marrying someone while still having a living spouse
Bigamy is a strict liability offense, so mistake as to the finality or effectiveness of a divorce or as to the survival of a spouse is generally not a defense
Bigamy is a Wharton Rule crime, so there can be no additional conviction of conspiracy if only two people (i.e., the bigamist and the new spouse) are involved in the crime
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Larceny definition
[property offenses]
Definition: An unlawful taking and carrying away (for even a slight distance and for a short period) of the personal property (not intangible or real property or services) of another
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Larceny by trick
[property offenses]
If the victim consents to the defendant taking custody or possession of her property because of a misrepresentation made by the defendant, this is “larceny by trick”
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Larceny and consent
[property offenses]
The taking must be trespass (i.e., without consent or consent obtained by fraud)
If a person obtains possession of property with permission (e.g., borrows it with the intent to return) and later decides to retain it permanently, this is not larceny; by contrast, if a person obtains property without permission (borrows it without permission) and then decides to retain it permanently, this is larceny by “continued trespass”
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Intent required for larceny
[property offenses]
Larceny is a specific intent crime; the defendant must have the intent to steal (permanently deprive the owner)
Mistake of ownership negates the mental state
Taking a car for a joyride with the intent to return is not larceny
Note: the crime of joyriding is a lesser included offense of larceny
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Larceny and lost/mislaid property
[property offenses]
One who finds lost or mislaid property is guilty of larceny if (1) he intends to keep it at the time he finds it and (2) he knows who owns the property or is reasonably able to discover the owner’s identity
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Definition of embezzlement
[property offenses]
Definition: Misappropriation of property of another held by defendant in lawful trust
Embezzlement occurs when the defendant misappropriates an item already in his or her lawful possession (e.g., trustee, bailee); larceny occurs when the defendant steals an item from the possession of another
The misappropriation must be by means inconsistent with terms of the trust (i.e., more than simply stealing; includes any unauthorized use of the property, such as donating it to charity or investing it in stocks)
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Framework for problems in which an employee misappropriates an employer's property
[property offenses]
If an employee misappropriates an employer’s property, use the following rules:
1. Low-level employees generally have only “custody” of the employer’s property and thus are guilty of larceny
2. Management-level employees are generally guilty of embezzlement
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Intent required for embezzlement
[property offenses]
Embezzlement is a specific intent crime; the defendant must act with the intent to defraud
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Embezzlement - effect of D's intent to return property
[property offenses]
If at the time of misappropriation the defendant intends to restore the exact same item of property, there is no embezzlement (this rule does not apply if the property misappropriated is money)
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False pretenses definition
[property offenses]
Definition: Obtaining title to property of another by intentional or knowing false statement of past or existing fact
Under the Model Penal Code, any false statement suffices for false pretenses, even a false promise to perform in the future
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Intent required for false pretenses
[property offenses]
False pretenses is a specific intent crime; the defendant must act with the intent to defraud
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Determining whether D is guilty of false pretenses or larceny by trick
[property offenses]
To determine whether the defendant is guilty of false pretenses or larceny by trick, ask: What did the victim intend to convey to the perpetrator?
If it was title (i.e., ownership), then the crime is false pretenses
If it was possession, then the crime is larceny by trick
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Robbery definition
[property offenses]
Definition: The taking of personal property of another from the person or in his/her presence (broadly construed to include such things as the next room) by force or intimidation (threats of immediate death or serious physical injury); nearly any force (e.g., purse-snatching, but not a clean pickpocketing) will suffice.
The force or threats may be to gain possession of the property or to retain possession immediately after the theft (e.g., using force to escape).
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Intent required for robbery
[property offenses]
Robbery is a specific intent crime; the defendant must act with the intent to steal
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Robbery and merger
[property offenses]
Robbery equals larceny plus either assault or battery (and the larceny, assault, and/or battery merge into the robbery)
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Extortion
[property offenses]
Definition: Acquiring property of another by means of certain oral or written threats.
If the accused uses immediate threats of harm, this is robbery.
Extortion is probably a specific intent crime at common law.
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Receiving stolen property - definition
[property offenses]
Definition: Receiving possession and control of personal property known (or strongly believed) to have been stolen by another person.
The accused’s “knowledge” that the property was stolen may be inferred from circumstantial evidence, such as proof that the property was acquired from a person of questionable character or that the accused paid a disproportionately low prices for the property.
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Receiving stolen property - intent required
[property offenses]
Receiving Stolen Property is a specific intent crime; the defendant must act with the intent to permanently deprive the owner of the property.
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Receiving stolen property - issues involving police
[property offenses]
If the police obtain possession of the property and then deliver it to the accused, the accused is not guilty of receiving stolen property (because it is no longer stolen), but is guilty of attempted receipt of stolen property if he thought he was buying stolen property.
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Forgery
[property offenses]
Definition: Making or altering a false writing with the specific intent to defraud.
The writing must represent a document that has “legal efficacy” (i.e., one that affects the legal relations between the parties, such as a promissory note, check, will, deed, contract, loan application, or bank account application)
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Burglary definition
[offenses against property]
Definition: A breaking and entry of the dwelling of another (based on possession, not ownership) at night with the intent to commit a felony or larceny therein
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Burglary definition of breaking
[offenses against property]
Breaking includes any opening or enlarging of locked or unlocked exterior or interior doors (e.g., bedroom, closet, wall safe) or windows and it includes the unauthorized use of keys (e.g., use of landlord’s master keys to enter apartment)
Breaking may also occur constructively by force, threats of force, fraud, or entry through a chimney
The breaking must be part of the dwelling; a breaking of personal property, such as a portable safe or trunk, is not sufficient
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Burglary definition of entry
[offenses against property]
Entry occurs if any part of the body breaks the plane of the structure or an instrument used to commit the felony (as opposed to an instrument used to break in) breaks the plane of the structure
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Intent required for burglary
[offenses against property]
Burglary is a specific intent crime; the defendant must have the intent to commit a felony inside (but the felony need not be completed)
The accused must have the intent to commit a felony in the dwelling at the time of the breaking
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Burglary and merger
[offenses against property]
If the accused enters a dwelling with the intent to commit a felony therein and actually does commit a felony, the accused is guilty of burglary and the felony; burglary and the underlying felony do not merge
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Arson
[offenses against property]
1. Definition: Burning the dwelling of another (based on possession, not ownership) with malice
2. Arson requires a fire
- A non-fire explosion, scorching, water damage, or smoke damage is not enough
3. Arson requires “charring;” the charring must be to the fibers of the dwelling itself (i.e., wood walls or floor) and not to personal property or fixtures (e.g., carpet) in the dwelling
4. MBE questions often assume that the jurisdiction’s arson law applies to structures other than dwellings
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Arson and accident
[offenses against property]
Starting a fire accidentally but recklessly letting it burn may satisfy the mental state
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House Burning
[offenses against property]
Definition: The burning of one’s own dwelling with malice.
The structure must either be in a city or town, or so near to other homes as to create a danger to these structures.
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Perjury
[other offenses]
1. Definition: Willful and corrupt taking of a false oath in a judicial proceeding
2. Perjury is a specific intent crime
3. A statement that is alleged to be perjured must be material (i.e., it might affect some phase of the judicial proceeding) and is not considered perjury if the witness recants before the end of the trial
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Subordination of perjury
[other offenses]
One who intentionally causes another to commit perjury is guilty of subordination of perjury
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Bribery
[other offenses]
1. Definition: Corrupt payment or receipt of anything of value in return for official action
2. Both offering a bribe or taking a bribe is a crime under modern law
3. Bribery is a specific intent crime and is a Wharton Rule crime
